[1973] PNGLR 372

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

BRENNAN

V

BRENNAN

Lae & Port Moresby
Minogue CJ

12-13 June 1973
31 August 1973
11 September 1973

MATRIMONIAL CAUSES - Dissolution of marriage - Jurisdiction - “Deserted wife” domiciled in Territory immediately before marriage - Cruelty - Elements of - Habitual - Matrimonial Causes Ordinance s. 19 (1).[cdi]1

The petitioner (wife) and respondent (husband) were married in Papua New Guinea in 1968, the petitioner being then domiciled in New Guinea. The respondent was at the date of the petition domiciled in Australia. The petitioner and the respondent left Papua New Guinea in January, 1971, living at various places in Queensland and arriving in Darwin in the Northern Territory in August, 1972, the respondent frequently living and working away from the petitioner. On 22nd September, 1972, the petitioner left the respondent at Darwin, and returned to Lae with the child of the marriage. On 14th February, 1973, the petitioner petitioned in the Supreme Court of Papua New Guinea for a decree of dissolution of marriage on the ground of cruelty.

The respondent first seriously assaulted the petitioner in August 1970 at which time she was 5 ½ months’ pregnant. Further serious assaults occurred in January, June and July of 1971 and January, May and August of 1972. On numerous occasions the respondent threatened the petitioner and in particular in May, 1972 when he told a friend to take the petitioner and the baby back to New Guinea saying “sooner or later it is going to get worse and I will end up by killing her” and in August, 1973, when accompanied by violence he told the petitioner to pack her bags and go and to take the child with her, following which the petitioner left for New Guinea on the first available flight three weeks later. From January to September 1972 the petitioner was nervous and was fearful of the respondent.

Held

(1)      In matrimonial causes to establish cruelty the following elements must be present:—

(1)      the conduct must cause injury or reasonable apprehension of injury to the health of the other party, irrespective of whether such result was intended;

(2)      the conduct which is alleged to constitute cruelty must be grave and weighty; and

(3)      the conduct, viewed as a whole in the light of all relevant circumstances, must be capable of bearing the description of cruelty in the generally accepted use of the word.

Dicta of Selby J in Ainsworth v. Ainsworth (1966-67), 10 F.L.R. 396, at p. 402 adopted.

(2)      Once it is proved to the Court’s satisfaction that a person has a propensity to cruel conduct, which propensity it can be seen will be exercised and is in fact exercised whenever there be obstruction to that person’s wishes, views or desires, and its exercise or apprehension of its exercise results in a deterioration in health of the party against whom it is directed, then it can be said that cruelty is habitual—albeit it is not of daily or weekly or even monthly occurrence.

Dicta of Mitchell J in Cole v. Cole (1965-66), 8 F.L.R. 297, at p. 298 referred to.

(3)      The petitioner who was domiciled in the Territory immediately before her marriage to the respondent was also in circumstances of the last assault upon her and her consequent departure from the matrimonial home constructively deserted, such that she was a deserted wife and so able to bring herself within the jurisdiction of the Court under s. 19 (1) of the Matrimonial Causes Ordinance which provides that a deserted wife who was domiciled in the Territory immediately before her marriage shall be deemed to be domiciled in the Territory.

(4)      The conduct of the respondent towards the petitioner could in the circumstances in which the petitioner and the respondent found themselves be properly described as habitual cruelty. The respondent’s conduct from August 1970 to September 1972 was such as to involve a constant or continuing danger or apprehension of danger to limb and bodily and mental health, and was such as to lead to a deterioration in the petitioner’s health. Accordingly the ground of cruelty had been made out.

Trial

This was an undefended suit for a decree of dissolution of marriage by a petitioner wife on the ground of cruelty. The petitioner whose domicile prior to marriage was New Guinea and whose common law domicile by virtue of that marriage was Australian had not satisfied the six months’ residential qualification prior to the institution of the proceedings and sought to bring herself within s. 19 (1) of the Matrimonial Causes Ordinance by establishing that she was a “deserted wife” within that section. Further facts and circumstances appear fully in the reasons for judgment.

Counsel

G. R. Rissen, for the petitioner.
Cur. adv. vult.

11 September 1973

MINOGUE CJ: The petitioner seeks a dissolution of her marriage with the respondent on the ground of cruelty, i.e. that since the marriage the respondent has during a period of not less than one year habitually been guilty of cruelty to her. The petition was not defended.

The first matter to decide is whether this Court has jurisdiction to hear the petition. The parties were married on 31st August, 1968, at Lae. The respondent who is now twenty-eight years of age came with his parents from Scotland to the state of Queensland when he was aged five. I am satisfied on the material before me that his father has long since and probably before the respondent’s attaining his majority acquired a domicil of choice in Australia and I am prepared to hold that the domicil of the respondent is now and was at the institution of the petition Australian. He came to Papua New Guinea in 1965 and obtained work as a cabinet maker. The petitioner at the time of her marriage I am satisfied was domiciled in New Guinea.

The parties left Papua New Guinea in January 1971 and after short residence at a number of places in Queensland eventually arrived in Darwin in the Northern Territory as near as I can judge in about mid-August 1972. On 22nd September, 1972, the petitioner left the respondent at Darwin and returned to Lae bringing the child of the marriage with her. The petition was filed on 14th February, 1973. At common law the domicil of the petitioner is Australian and for this Court to assume jurisdiction, as she has not been resident in Papua New Guinea for six months immediately preceding the institution of proceedings and so deemed to be domiciled in Papua New Guinea at the date of institution, she must bring herself within the provisions of s. 19 (1) of the Matrimonial Causes Ordinance. That section enacts that for the purposes of this Ordinance a deserted wife who is domiciled in the Territory either immediately before her marriage or immediately before the desertion shall be deemed to be domiciled in the Territory. I am satisfied that she was domiciled in “the Territory” immediately before her marriage, but the question remains: is she a deserted wife? If she is she is entitled to bring proceedings upon any ground available under the Ordinance. See Moore v. Moore[cdii]2.

As the question of her being a deserted wife seems to me intimately bound up with the ground upon which she has chosen to petition it is necessary to consider the history of the married life such as I have been able to piece it together from the testimony of the petitioner and of a witness called by her, her aunt Mrs. Lydia Madero.

At the time of the marriage the petitioner had just turned nineteen years of age and was employed as a telephonist at Lae. She is of Filipino extraction.

It is difficult for me to form any real picture of the respondent. I believe him to be a first-class tradesman in his trade of cabinet maker and of a somewhat adventurous and roving disposition. The petitioner described him as a “loner” by which I understood her to mean that he was not a man to make male friends easily. She further and I think truthfully described him as being supremely self-confident and impatient of opposition to any views which he might hold. The marriage seems to have been initially a reasonably happy one although because of the respondent’s tendencies he occasionally would fly into rages and assault the petitioner. The first serious assault took place towards the end of August in 1970. The petitioner was then 5 1/2 months’ pregnant. The respondent assaulted her whilst in bed, kicked her in the back and pushed her out of the bed. About a week later she began to haemorrhage and was taken to hospital where she remained for two months and at the end of which time, on 4th October, 1970, a Caesarean section was performed but the child was stillborn. The petitioner blames the respondent for her hospitalization but I am unable to say whether he was in fact responsible. However, I would not have any doubt that his conduct was cruel and callous. The petitioner on her discharge from hospital was advised not to have another child for at least twenty-four months.

A further serious assault occurred in January 1971, just before the parties left Lae to proceed to Australia. It was an assault which left the petitioner with visible marks including a blackened eye.

On arrival in Australia the parties seem to have resided with the respondent’s parents for a short time and then to have travelled around Queensland. In mid-year the respondent was in employment at Cairns. Despite his awareness of the advice given the petitioner with regard to becoming pregnant according to her he “set out to get me pregnant again”. On several occasions when she refused to have intercourse with him he beat her, pulled her hair and half-choked her, and oft-times would call her a “stupid kanaka”. In the result she allowed him to have frequent intercourse with her and became pregnant towards the end of June or in early July 1971.

The respondent in about July went to Weipa to work leaving the petitioner living in their caravan at Cairns. On his return in September he accused the petitioner of being too friendly with the husband of a friend of hers. She proclaimed her innocence of any interest in or misconduct with this man whereupon the respondent assaulted her and, as she put it, half-choked her. Her throat was red and sore for some time after this incident. The parties then came back to the Gold Coast, south of Brisbane, where a number of arguments took place principally over the respondent’s nightly insistence upon intercourse. At this time I believe the petitioner’s description of herself as being tense and nervous and her statement to me that the respondent would often say to her that he would kill her one of these days. After a short time at the Gold Coast the parties came back to Brisbane and lived in a caravan in a caravan park at Holland Park, a suburb of that city. Whilst there the respondent again went to Weipa in North Queensland for a short period of employment leaving the petitioner in the caravan.

He returned from Weipa to the caravan park on or about the 13th January, 1972. There the petitioner was in a group of people outside the caravan. A casual acquaintance put his arm around her and said “hello” to her and also uttered the same greeting to the respondent and then walked away. The petitioner went into the caravan and cooked a meal which was eaten by both of them and then she retired to bed. The respondent assaulted her allegedly because of the man putting his arm around her and then commanded her to go for a drive with him. They drove about 300 yards away from the caravan park at about 9.30 p.m. and there according to the petitioner the respondent beat her severely, accusing her of misconduct with the man who had put his arm around her, pulling her hair and punching her around the head and eyes and stomach, and he knocked her head against the car door. She was then over twenty-six weeks’ pregnant and according to her, and I believe she was telling the truth, the respondent threatened to kill both her and the baby. He punched her several times on the stomach with his closed fist.

On the following day she went to hospital for her usual pre-natal visit. She was observed to have a right periorbital haematoma and a sub-conjunctival haemorrhage of the right eye. Whilst there fairly early in the morning she began to suffer ante-natal pains and she was taken to the labour ward and eventually at 10 o’clock that night a Caesarean section was performed and she gave birth to the child of the marriage. During the following day the respondent came to the hospital and the petitioner, as she put it, “nagged him about putting me into hospital before the baby was due.” He lost his temper and threatened to beat her up whereupon she told him he had better leave. This he did.

A short time after the petitioner came out of hospital the parties were on the move again and went first to Rockhampton where they remained for about two weeks and then to Townsville where they stayed for about four months. I am satisfied that at this time the petitioner had lost her affection for the respondent and was in constant fear of what his unpredictable temper would lead him to do.

During the May school holidays Mrs. Madero and her husband came down from New Guinea to stay with the petitioner and respondent in the caravan park in Townsville as did also a cousin of the petitioner who was at school in Charters Towers. During an evening card game at this time the respondent began to ill-temperedly criticize the young boy because of his lack of numerical skill and the petitioner told him to keep quiet. At this time the boy was crying. The respondent pulled the petitioner’s hair, banged her head on the table and left the gathering. The following morning he told Mrs. Madero to take the petitioner and the baby back home with them to New Guinea saying, “sooner or later it is going to get worse and I will end up by killing her”. He told them all including the petitioner to vacate the caravan which they did.

The following day Mrs. Madero asked the respondent to take the petitioner back although the petitioner herself was unwilling to go. However, a little later she decided for the sake of the child to make another attempt to salvage the marriage. The Maderos returned to New Guinea and shortly afterwards the parties moved on to Mount Isa where they remained for approximately eight weeks. Several arguments took place there. According to the petitioner they arose because she attempted to point out that in arguments he was apparently having with his workmates there were two sides to the argument whereupon he would lose his temper and turn on her. However, she seems to have avoided any actual assault.

In or about August the parties together with the baby moved on to Darwin. In the final stage of the journey the petitioner apparently misread a direction on a map whereupon the respondent assaulted her violently in the car. A few days later the respondent was driving the petitioner back to their dwelling and in the course of conversation she told him that she had forgotten to buy some batteries which he had asked her to do. He lost his temper in the car, beat her violently, pulled her hair and hit her head several times against the car door. He also elbowed her in the eye causing it to split in the corner. During the course of this violence he told her to pack her bags and go and to take the child with her. This proved to be the last straw for the petitioner and she, next day went to the airline office to seek a passage to Lae in New Guinea. She was unable to procure a seat until a date some three weeks later. During the whole of the period from mid-January to September 1972 I am satisfied that the petitioner was tense and nervous and was fearful of the respondent.

Whilst she was awaiting passage on the aircraft she remained living with the respondent and the respondent on several occasions apparently repenting of his conduct attempted to persuade her to stay. This she would not agree to. Intercourse took place at least during the second and third weeks of her stay after the assault but I do not think these acts of intercourse can be regarded as condonation on her part. It seems to me that this was more submissiveness by her to avoid further violent conduct by him.

The petitioner returned to Lae on 22nd September and thereafter for some time was under the care of Dr. Millar. He found a scar below the right eye and some thickening and staining of the tissues in that area which he considered to be consistent with previous severe contusion to this area. In his opinion she was extremely tense and anxious and required prolonged treatment and hospitalization for a severe urticarial rash which he considered to be of nervous origin.

The petitioner produced several letters written by the respondent after her departure from Darwin, in the first of which written on 20th November he wrote: “You told me on the phone that you’re not interested in seeing me again and I can’t blame you for that”. There is nothing in the remainder of the correspondence which I found of any assistance.

The respondent has not filed any answer to what even allowing for the sketchy nature of the facts set out in the petition are a number of serious allegations against him and after having closely and sceptically observed the petitioner I feel that I can accept her as a witness of truth. Accepting as I do her account of the final assault upon her and her consequent departure from the matrimonial home I am satisfied that a case of constructive desertion has been made out and that she is a deserted wife and so able to bring herself within the jurisdiction of this Court.

The more difficult question remains whether she has made out the ground of habitual cruelty to her during a period of not less than one year. It is now clear since the decision of the High Court in Tilney v. Tilney[cdiii]3 that habitual cruelty persisting for not less than a whole year must be proved. Selby J in Ainsworth v. Ainsworth[cdiv]4 after analyzing what I would regard as the most important cases dealing with cruelty took the view that it is now firmly established that in matrimonial causes before a spouse can be found guilty of cruelty certain elements must be present. They may be listed as follows:

(1)      the conduct must cause injury or reasonable apprehension of injury to the health of the other party, irrespective of whether such result was intended;

(2)      the conduct which is alleged to constitute cruelty must be grave and weighty; and

(3)      the conduct, viewed as a whole in the light of all relevant circumstances, must be capable of bearing the description of cruelty in the generally accepted use of the word.

Murray CJ in Dunkley v. Dunkley[cdv]5 defined habitual cruelty thus: “habitual cruelty as a ground for divorce means a course of conduct during one year at least such as to involve a constant or continuing danger or apprehension of danger to life, or limb, or bodily or mental health.”—a definition which was adopted by the Full Court of South Australia in McCann v. McCann[cdvi]6.

In Dahlitz v. Dahlitz[cdvii]7 Mayo J had to consider a case where the evidence established that the cruelty was of a particularly savage order but that there were periods of three months and two days, twenty-seven days, one month and twelve days, four months and eight days, one month and twenty-two days, and one month and twenty-four days, between the respective acts complained of during the last period of one year and one month. He said: “ ‘habitual’ means of the nature of or fixed by habit. And a habit connotes a settled disposition or tendency to act in a certain way, a tendency resulting from the frequent repetition of the same act until it becomes almost, or quite, involuntary.”

In that case although he did not think the act of cruelty could properly be described as “frequent” or showing “a continuity of recurrence or persistence in fact” he was satisfied that the general attitude of the respondent towards the petitioner was such that his intermittent outbursts of brutality caused her not unreasonably to be under an apprehension that was rarely absent of physical danger of further expected outbursts during the relevant period of twelve months. And he regarded that cruelty as satisfying the definition in Dunkley v. Dunkley[cdviii]8 to which I have referred.

Mitchell J in Cole v. Cole[cdix]9 said:

“Habitual cruelty need not consist of actual physical violence. In so far as it does consist of physical violence it is not necessary in order to establish that the cruelty is habitual to prove that acts of violence took place on each day of the period. The cruelty relied upon, of whatever nature it may be, must occur with sufficient frequency to be characterized as habitual.”

—a statement with which I respectfully agree. As I see it once it is proved to the court’s satisfaction that a person has a propensity to cruel conduct (of the nature described by Selby J) which propensity it can be seen will be exercised and is in fact exercised whenever there be obstruction to that person’s wishes, views or desires, and its exercise or apprehension of its exercise results in a deterioration in health of the party against whom it is directed, then it can be said that cruelty is habitual—albeit it is not of daily or weekly or even monthly occurrence.

The first act of cruelty upon which the court can seize was that committed by the respondent in August 1970. This was followed by the beating which the petitioner received in January 1971. What followed during the rest of the year 1971 and during the time when the respondent was not living and working away from the petitioner can in the circumstances in which these parties found themselves I think be properly described as habitual cruelty. In my opinion in this case the respondent’s conduct throughout the period from August 1970 to September 1972 was such as to involve a constant or continuing danger or apprehension of danger to limb and bodily and mental health. I am satisfied that both the beatings and mishandling which the petitioner received, the constant sexual demands upon her and the apprehension that if they were not satisfied harm would result, led to a deterioration in her health. And so I would hold that the petitioner has made out ground for relief. She has filed a discretion statement but the adultery therein disclosed in my opinion should not lead me to exercise my discretion against the grant of relief. Accordingly I am prepared to grant the dissolution sought.

However there are two further matters to be disposed of and they are: arrangements for the welfare of the child of the marriage, Patricia Jane Brennan, and the question of the maintenance for the petitioner. I am clearly of the view that the petitioner should have the custody of the child for whom I am satisfied she is adequately caring. She is paying $12.00 per week to her aunt for the board of the child and herself and also $14.00 a fortnight for a babysitter for the child. This I think to be a reasonable expense when the petitioner is working. I have heard no argument on the part of the respondent but I would regard it as reasonable that he be ordered to pay the sum of $15.00 per week for the child’s maintenance. With regard to the petitioner she is in employment and I think will have no trouble in continuing in employment for some time to come. She is currently earning in the vicinity of $145.00 per fortnight and believes the respondent to be earning approximately $190.00 per fortnight. It seems to me that at this present stage I should award her no more than $5.00 per week. Of course should her situation change and particularly should her salary in the future be brought back to the level of indigenous salaries she can come back to this Court for further relief.

His Honour then made the formal findings and orders necessary to found the decree.

Decree nisi and orders accordingly.

Solicitors for the petitioner: Reynolds, Rissen & Co.

[cdi]The effect of s. 19 (1) of the Matrimonial Causes Ordinance is set out at p. 374.
[cdii](1964-66) 7 FLR. 92.
[cdiii](1969) 43 ALJR. 240.
(1967) 10 F.L.R. 396, at p. 402.
[cdv][1938] S.ASR. 325, at p. 326.
[cdvi][1947] S.ASR. 108, at p. 110.
[cdvii][1945] SASR. 47.
[cdviii][1938] SASR. 325, at p. 326.
[cdix](1970) 15 FLR. 297, at p. 298.